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March 7, 2012

Should sentencing fans support or oppose idea to scuttle judicial life tenure?

The question in the title of this post is prompted by this new opinion piece at Politico authored by Professor Herman Schwartz, which is headlined "Scuttle SCOTUS's life tenure." Here are excerpts from the potent piece:

Life tenure for Supreme Court justices does not belong in a democracy.

It gives an unelected public official immense power for decades over the lives of hundreds of millions of people without any accountability. It should be abolished and replaced with a single, nonrenewable term of approximately 15 years.

The justices are among the most powerful people on the planet. Their mandate reaches into every corner of American life — and even abroad. Much of the time, they operate in secrecy — some of it necessary, but in many respects not. They are treated with enormous respect, even awe, yet their lives are largely isolated from those they influence, making it hard for them to understand what most people deal with.

They can remain in office until they die or choose to leave. Congress has also given the justices virtually complete control over their workload. With few exceptions, they decide which cases they hear and how many. Since the 1980s, the court’s docket has shrunk from approximately 150 each term to the current 70-80 with no explanation....

Accidents of history have long concentrated Supreme Court’s power even more — often in just one justice. During the past 40 years, the conservative justices have usually had a narrow 5-4 majority on most controversial issues, but usually one particular conservative justice has occasionally voted with the liberals....

Yet justices are not accountable for their decisions to either the political branches or the electorate. Though Congress can theoretically overturn the court’s nonconstitutional decisions, it rarely does.

Such great, unaccountable power is anomalous in a democracy, but it is the price we pay for judicial independence. Independence does not, however, require that those who exercise such power do so until they die or choose to retire, which can be 30 to 40 years.

No other democracy in the world allows its judges such longevity. All mandate retirement at age 65 or 75, or a specific term of years. Every state but Rhode Island has also done so.

The price of life tenure is high. The last 10 justices to leave the court, either by death or by retirement, served an average of 26.4 years. Three served more than 30 years; four served 23 or more years, and one, David Souter, 19. Only Lewis Powell served a typical judicial term — 15 years.

By contrast, from 1789 to 1970, justices served an average of 15 years and retired at 68. The 10 most recent justices to leave court averaged 80.6 years. Six were 80 and older, Chief Justice Warren Burger was 79 and Sandra Day O’Connor and Byron White were 76. Only Souter left at a standard retirement age, 70.

No one, particularly not an unaccountable public servant in a democracy, should have such great power for so long. The Framers could not have foreseen that this would happen. Life expectancy in 1787 was far shorter and the job, which involved “riding circuit” on terrible roads over long distances, was not easy. The first 10 justices, for example, served an average of less than eight years.

The results of recent longevity have not been good. Power breeds arrogance — and Supreme Court justices are not immune.... Mental rigidity may accompany old age — which can make older people reluctant to understand the fast-moving technological, social and economic changes of the past 50 years. Mental capacities may also wane....

Life tenure can also produce an uneven allocation of appointments among presidents. It enables the justices to try to influence the appointment of like-minded successors by strategically timing resignations, which is now a common occurrence. When illness or death forces a departure, mere chance prevails. As a result, William Howard Taft had six appointments in his single presidential term, but Bill Clinton had only two during his eight years.

Many law professors, members of Congress, leading lawyers and even some Supreme Court justices have long called for an end to what University of Texas law professor Lucas Powe has called “the Framers’ greatest lasting mistake.” Many proposals set retirement at 70 or 75. But that won’t necessarily reduce lengthy tenures, because justices can be appointed in their 40s and early 50s.

The strongest suggestion is a single, nonrenewable term of approximately 15 years, a practice that many other courts with constitutional jurisdiction follow. The openings could be set at staggered intervals. Judicial independence is essential to a democracy, but life tenure is not. It is time we corrected the Framers’ mistake.

I find this argument pretty compelling on a number of fronts, although I fear there is little chance that a change along these lines can/will be happening any time soon. Still, if everyone outside the Beltway were to get behind this idea, one never knows. And, among the potential benefits, a fixed limited SCOTUS term for justices might calm down a bit the fights over judicial appointments.

In addition, as my post-title question suggests, I am interested in hearing from readers as to whether they also think this seemingly reasonable pitch for fixed 15-year appointment terms ought also apply to federal circuit and district judges. After all, I think concerns about arrogance and rigidity are also appropriate when considering circuit and district judges who have been on the federal bench for decades.

Comments

Not really apropos to the topic, but I'm amused by this phrase: "usually one particular conservative justice has occasionally voted with the liberals".

I like the idea of usually doing something occasionally.

Posted by: C.A.J. | Mar 7, 2012 11:22:07 AM

My vote is a term of 10 yrs and mandatory retirement at age 68....Non-reweable..
15 yrs is certainly workable.. I would rather see the high court refreshed often...
We live in a fast paced world and we need justices that can walk, exercise and partake
in a life style, that is similar to the nation it serves..

Posted by: Midwest Guy | Mar 7, 2012 11:29:01 AM

There are major changes to how the legislature is formulated that I would make before I would mess with the judiciary. I really don't want a court that is more democratically responsive than what we have now.

Posted by: Soronel Haetir | Mar 7, 2012 11:55:41 AM

The 15-year term would end the practice of timing retirements and would de-emphasize the personalities of the justices and make the politics of appointments more manageable.

An actual change is extremely unlikely I think.

Posted by: Bryan Gates | Mar 7, 2012 11:59:50 AM

Based on my experience in the federal court, I oppose the idea to scuttle judicial life tenure.

Posted by: Stanley Feldman | Mar 7, 2012 12:13:02 PM

Worcester v. Georgia - "John Marshall has made his decision; now let him enforce it!" I really miss the good old days.

The issue is not so much the tenure of judges as the behemoth federal enforcement mechanism that has evolved since them. Break that beast and life tenure becomes of very little consequence.

Posted by: Jardinero1 | Mar 7, 2012 12:18:55 PM

Would it be too snarky to suggest that any debate about life tenure for (aging) federal judges should also include discussion of tenure for (aging) law professors?

I understand that in Federalist 78, Hamilton argues independence from the executive and legislative branches is absolutely essential, and only life tenure ensures such independence. I'll go with Hamilton.

Posted by: Michael R. Levine | Mar 7, 2012 2:09:48 PM

There is a vision of Judges perhaps behaving as congressmen who at the end of their term find it necessary to legislate in a fashion that prepares them for a future career. Yikes, would a justice behave in like manner? Just a thought.

Posted by: beth | Mar 7, 2012 2:52:57 PM

@Michael Levine. Yes, but that was said during a time when most people did not live well into there 80s. It was Jefferson who said regarding the Constitution, "The world belong to the living, not to the dead." I agree whole heartedly. My own personal opinion is 20 years. First, that's long enough that the independence of the judiciary is maintained (given that the max for a President is 8 years). Second, 20 years is the stereotypical length of on chronological generation.

@Judge Kopf.

My issue is on of concentration of power. A ruling by SCOTUS has the potential to affect the lives of millions of people, something no law professor--not even one as amazing as Doug--can claim. I'm actually not opposed to life tenure for District Judges because their authority is by definition circumscribed by higher courts. By the ultimate court needs some limits on it; being able to sit as the final arbitrator of anything for 50 years is fundamentally undemocratic.

Posted by: Daniel | Mar 7, 2012 3:29:40 PM

Because of their immunities, and because, they refuse to leave, I have proposed, arresting appellate judges, an hour's fair trial, and summary executions. It takes 100 years to achieve the self-evident in the law. Lifetime appointments are a factor in this slowness. This sclerotic arrangement was devised 100 years before the description of senile dementia by Alzheimer.

If they would leave on their own, or after a horrendous mistake, as would be honorable, violent remedies will no longer be justified.

Old people cannot change. The faster the change desired, the younger the judges should be. If you want blazing video game style legal reaction times, make the retirement age 16, and the qualifying age 12. Experience is not that necessary. Most of the important questions coming before the courts are unprecedented.

I agree with Judge Kopf's implication. The entirety of professors from History's Most Annoying Generation (mine), the Baby Boomers, should be purged from all academic posts. They may still serve as proctors, teaching assistants, tutors, if they promise to not be too annoying, and pedantic.

I would also limit Federal judges to 15 yrs and make them retire at age 68....Nothing against you Judge Kopf...I just think its healthy to get movement in all aspects of areas
that change with the times...We have booker..If we had a turnover of new judges, we may get variances granted more readily..Currently one has to give a walk on water type image to get a downward departure...Its just not in the cards to happen, even if the guidelines indicate such....Put it this way, when variances and departures are granted as
easily as the rubber stamped Enhancements, we are getting somewhere...

Posted by: Midwest Guy | Mar 7, 2012 4:05:17 PM

"The world belongs to the living, not to the dead."

great quote, yes, new blood = a good thing, rejuvenates the mix on the court, paces the changing dynamics of the country and possibly increases the representation of a broader segment of the populace, mandatory retirement at 68 or 70 definitely worth a serious look at too
imagine the sensibilities of an otis or similar majority block of characters in a lifetime position like that, unimaginable ... hmnnn, in hindsight, maybe we're not that far off already

Posted by: lax | Mar 7, 2012 5:20:17 PM

"The world belongs to the living, not to the dead."

great quote, yes, new blood = a good thing, rejuvenates the mix on the court, paces the changing dynamics of the country and possibly increases the representation of a broader segment of the populace, mandatory retirement at 68 or 70 definitely worth a serious look at too
imagine the sensibilities of an otis or similar majority block of characters in a lifetime position like that, unimaginable ... hmnnn, in hindsight, maybe we're not that far off already

Posted by: lax | Mar 7, 2012 5:24:09 PM

As opposed to an op-ed piece, if one is interested in a serious and exhaustive examination of the strengths and weaknesses of life tenure for Supreme Court Justices, together with a thought provoking suggestion to address the problematic aspects of the practice, see David R. Stras and Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute,” 83 Washington University Law Quarterly 1397-1467 (2005), also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=818724.

I believe life tenure may have more costs than benefits for law profs as well as for federal judges, though Daniel rightly suggests that the most significant law professor often has conclusive impact on lives and rights that are far less than even the least significant federal judge.

In general, I am a fan of "lengthy but meaningful term limits" for all sorts of positions (especially in government) because I fear that folks with very lengthy experience will often overestimate the virtues of that experience and underestimate the vices that can often accompany doing the same thing for too long. As in all settings, balance and diversity seem to me to be important values here.

Posted by: Doug B. | Mar 7, 2012 7:13:51 PM

Didn't the Founders consider irreducible salaries and lifetime tenure the two essential ingredients to (attempting) to insure the political independence of Article III judges?

For those of us who practice in state court and federal court, there is no doubt that, as a general rule, the federal judiciary is more immune from political influence than the state judiciary.

By the same token, when we learn the composition of the panels assigned to our 9th Cir. cases, that information causes us optimism or pessimism. The identity of a judge should not matter if judges were impartial and apolitical. Alas, they are not, not even federal judges at the highest level.

Posted by: Calif. Capital Defense Counsel | Mar 7, 2012 7:19:50 PM

Dear Professor Berman,

I will be long gone before this could turn into anything that would impact me. With that said, and on a very personal level, consider the following:

I was 45 when I was appointed. My wife had died and I was raising three kids by myself. I was, relatively speaking, poor from a financial perspective. I was a magistrate judge when I learned that the first President Bush might appoint me. I simply would not have taken the job if I knew I was out of a job 15 years later. I would have happily continued to be a magistrate judge and hoped that my performance would have warranted reappointment by the Article III judges who thought enough of me to appoint me in the first place.

In sum, I can debate the esoteric points about life tenure with you, but the law review article I cited earlier does a better job. In the end, I am conservative enough to think that the Constitution ought never be amended unless there is a clear and present danger that our republic will be harmed absent such an amendment. That does not appear to be the case when it comes to life tenure for Article III judges.

Extend the 15 year limit to US Attorneys, Assistant United States Attorneys, Federal Defenders and Assistant Federal Defenders

Posted by: ? | Mar 7, 2012 9:52:51 PM

Judges are responsible, along with lawyers in the legislature, for the total atavism of the core doctrines, and the utter failure of every goal of every law subject. I see them all as self-dealing Inquisitors, and brazen plagiarizers of the Catechism. The sole validation of what these little Caesars do is at the point of a gun. Nothing they have ever done has ever had external scientific validation nor any benefit. All historic achievements have been despite judges, never because of judges. As with the first Inquisition, only a French style revolution with mass arrests can rid our nation of their failure, their stupidity, their lawyer language gibberish, their rent seeking, their big government bias, their total feminist running dog bias. Judges are a waking nightmare for this nation.

Once the current criminal gang on the bench has been arrested, tried, and summarily executed for their mass insurrection against the constitution, why start fresh?

1) Members of the jury pool can probably do a far better job than these cult criminals.

2) Start judge school. Middle aged people with expertise in a subject who have suffered taking responsibility for making decision can apply to these three year schools. The main message would be apply the law, do not make the law. The third year would be judging under supervision. Once completed, a licensing exam should be passed. Only the licensed may be elected or appointed.

3) All judges should be liable for deviations from professional standards of due care. The victims of their carelessness should be fully compensated from the assets of the judge or his insurance.

"In sum, I can debate the esoteric points about life tenure with you, but the law review article I cited earlier does a better job. In the end, I am conservative enough to think that the Constitution ought never be amended unless there is a clear and present danger that our republic will be harmed absent such an amendment. That does not appear to be the case when it comes to life tenure for Article III judges."

If the system wasn't so polarized right now this would not be a problem

Posted by: rodsmith | Mar 8, 2012 1:30:08 AM

"...unless there is a clear and present danger that our republic will be harmed absent such an amendment."

20 million index felonies, 17,000 murders, 9/11, the destruction of the economy by tort litigation and regulatory excesses, the elimination of the family, failed education, massive rates of bastardy, the failure of every goal of every law subject. Not enough yet?

How about a limit on the number of comments any individual can make for any one particular post?

Posted by: alan chaset | Mar 8, 2012 8:32:56 AM

Judge Kopf:

I think the 15-year term limit should only be applied to Supreme Court justices. I once read of a plan where Supreme Court justices who finished their term would be assigned to one of the federal circuits.

I absolutely agree that limiting service to 15 years would be a bad idea. We would lose the service of too many able judges.

Posted by: Bryan Gates | Mar 8, 2012 12:31:29 PM

Judge Kopf:

As stated before I'm with Alexander Hamilton and now with you.

P.S. A long a healthy life!!

Posted by: Michael R. Levine | Mar 8, 2012 1:25:45 PM

Is it possible there are fewer and fewer wise sages in congress nowadays? And is it possible that is because term limits break the historical continuity so that fewer and fewer know the history of past laws and may even be ignorant of some previous laws?

I suspect the real beef is that SCOTUS still retains so much respect relative to congress and even the executive branch.

"I am conservative enough to think that the Constitution ought never be amended unless there is a clear and present danger that our republic will be harmed absent such an amendment."

Holmes "clear and present danger" test was articulating a standard that justified when a government could take away a citizen's exercising of a right, in that case a right to free speech. You have twisted his principle into a standard that prevents citizens from granting themselves rights in the first place. It's difficult to justify /any/ of the previous amendments to the Constitution on the grounds that their absence would have resulted in a clear and present danger to the Republic. Your stated philosophy isn't "conservative" in any rational meaning of that term; it's a justification for political atherosclerosis.

Posted by: Daniel | Mar 9, 2012 6:24:35 PM

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